COMMONWEALTH v. BANKERT (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant, Jared Bankert, was convicted of one count of indecent assault and battery on a child under fourteen. On appeal, he claims that the Commonwealth erred in presenting evidence that exceeded the bounds of permissible first complaint testimony, eliciting improper testimony to the effect that the defendant did not speak to a police officer, and exceeding the bounds of permissible closing argument. The Commonwealth acknowledges errors in the closing argument and concedes that the errors created a substantial risk of a miscarriage of justice.² We agree and thus vacate the judgment.

The Commonwealth's case consisted of the testimony of the victim who was approximately eight years old at the time of the incident and ten at the time of trial. She described an incident, along with certain details, where the defendant put his hand under her pajamas and touched her “in the crotch.” The victim's testimony was corroborated in certain respects by her younger sister's testimony. The Commonwealth also presented first complaint testimony. Apart from a chalk, the Commonwealth introduced no exhibits at trial.

The Commonwealth concedes error in the prosecutor's closing argument because the prosecutor improperly commented on the defendant's constitutional right to be present at trial and to confront witnesses against him, and on his constitutional right to cross-examine witnesses. The Commonwealth further concedes error because the prosecutor improperly suggested that the victim was credible based on her willingness to testify and undergo cross-examination. See, e.g., Commonwealth v. Dirgo, 474 Mass. 1012, 1014 (2016); Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005); Commonwealth v. Alphonse, 87 Mass. App. Ct. 336, 338-339 (2015); Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009). We further note the error in the prosecutor's statement that by coming to court to testify at age ten, the victim had “consented to tell the truth.”

After review of the entire record, we agree that there were multiple errors in closing argument and that these errors created a substantial risk of a miscarriage of justice. See Commonwealth v. Santos, 65 Mass. App. Ct. 122, 124 (2005) (“Our review confirms the necessity of [the Commonwealth's] concession”). The case hinged on witness credibility and whether the Commonwealth sustained its burden of proof. The numerous errors thus went to the heart of the case; the evidence at trial was not overwhelming; and the judge's instructions, in this exceptional instance, did not mitigate the harm caused. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Accordingly, we vacate the judgment.³

Judgment vacated.

Verdict set aside.

FOOTNOTES

2.   We acknowledge the Commonwealth's representation that the appellate unit of the district attorney's office “has taken additional steps to remind trial prosecutors about proper closing arguments.”

3.   Although we need not address the defendant's other claims of error, in the event of a retrial, the Commonwealth should ensure that any first complaint testimony is properly limited in scope.